10-008012 Escambia County School Board vs. William Dale Kite Status: Closed Recommended Order on Friday, December 17, 2010.

Summary: Respondent did not violate the terms of his Return to Work Agreement and should be reinstated to his teaching position with back pay and benefits.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ESCAMBIA COUNTY SCHOOL BOARD , )

)

Petitioner , )

)

vs. ) Case No. 10 - 8012

)

WILLIAM DALE KITE , )

)

Respondent . )

)

RECOMMENDED ORDER

A final hearing was held in this matter before Robert S.

Cohen, Administrative Law Judge with the Division of

Administrative Hearings, on October 27, 2010, in Pensacola,

Florida.

APPEARANCES

For Petitioner: Joseph L. Hammons, Esquire

The Hammons Law Firm, P.A.

17 West Cervantes Street

Pensacola, Florida 32501 - 3125

For Respondent: Anthony D. Demma, Esquire

Meyer, Brooks, Demma and Blohm, P.A.

Post Office Box 1547

Tallahassee, Florida 32302

STATEMENT OF THE ISSUE

The issue for determination is whether Mr. Kite ingested

cocaine subsequent to his entry into a Return to Work Agreement

with the Escambia County School Board on or about August 17,

2009. For the re asons explained more fully below, Mr. Kite

should be reinstated to his position.

PRELIMINARY STATEMENT

Respondent, William Dale Kite, a welding instructor with

the Escambia County School Board (School Board) was terminated

from his employment subject to h is opportunity to contest

charges of misconduct against him as authorized by Chapter 120,

Florida Statutes. On August 4, 2009, Respondent was required to

submit to a reasonable suspicion drug screen based on reports

from other employees that he appeared t o be impaired at work.

The drug screen on that date resulted in a positive indication

of cocaine. The School Board offered, in accordance with its

policies and Collective Bargaining Agreement, the opportunity

for Respondent to enter into a Return to Work Agreement (RTW

Agreement) whereby he would be allowed to continue his

employment with the School District if he would undergo

evaluation and treatment for substance abuse and successfully

complete all terms and conditions of the agreement. Those terms

an d conditions included the requirement that he remain free from

unlawful drug use during any time the agreement was in force.

On May 17, 2010, Respondent was directed to submit to a

random urine drug screen. Because of miscommunications between

the Schoo l Board and the drug testing facility , Respondent did

not receive the full panel urine test customarily requested by

the School Board on May 17 and, when he returned on May 18,

2010, was required to undergo a drug screen based on a hair

sample. This was a t the direction of School Board Risk

Management. The hair sample tested positive for cocaine.

Respondent , however, disputes that the cocaine was ingested

during the time the R TW Agreement was in force and represents

that his last cocaine use preceded the implementation of the

agreement on August 17, 2009. He requested a hearing to

challenge the termination action approved by the School Board.

Th e hearing was conducted on October 27, 2010, in Pensacola,

Florida.

At the hearing, Petitioner presented the t estimony of Kevin

Windham , Carley McCorvey , and Charles H. Moorefield, III, M.D.

(via deposition), and offered eight exhibits into evidence.

Respondent testified on his own behalf and presented the

testimony of Coulson Barfield and William R. Sawyer, Ph.D . (via

deposition), and offered three exhibits into evidence.

A Transcript was filed on November 15, 2010 . Petitioner

and Respondent subsequently filed their proposed findings of

fact and conclusions of law on December 3, 2010 .

References to statutes are to Florida Statutes (2010)

unless otherwise noted.

FINDINGS OF FACT

1. Petitioner is responsible for the public education of

students grades K - 12 in Escambia County, Florida.

2. At all times relevant to these proceedings Respondent,

William Dal e Kite, was employed by the School Board as a welding

instructor. He is fifty years of age.

3. On August 4, 2009, Respondent was required by his

employer, the School Board, to submit to a drug screen based

upon reasonable suspicion. Other employees at work had reported

observing behavior indicating Respondent was impaired. He

submitted to the drug screen and tested positive for cocaine.

4. As a result of testing positive for cocaine, and

pursuant to the School Board ' s policies and Collective

Bargai ning Agreement, Respondent was offered an opportunity to

enter into a RTW Agreement. The RTW Agreement was executed

August 17, 2009. The agreement specifically provides, among

other things, as follows:

I understand that a repeat drug offense will

be gro unds for termination.

I understand, acknowledge and agree that my

failure to comply with the provisions of

this Agreement, including my failure to

remain drug/alcohol free shall constitute

grounds for my termination from employment

with the Escambia Coun ty School District and

waive any entitlement to my employment,

benefits or compensation, thereof, effective

my date of termination.

I further understand, acknowledge and agree

that I waive any/all rights to challenge a

subsequent termination action premi sed on a

repeat positive drug/alcohol test through

the provisions of Article III - Resolution

of Grievances and Problems other than based

on the accuracy of the alcohol screening

test.

(italics in original)

5. On December 7, 2009, Respondent signed an addendum to

the RTW Agreement acknowledging his return to work , and his

continuing obligation to comply with the original RTW A greement

and subsequent addendums. Prior to December 7, 2009,

Respondent , in accordance with the RTW A greement, had been on

sus pension without pay while he completed the initial evaluation

and treatment obligations under the RTW A greement.

6. As a condition of the RTW A greement , Respondent was

obligated to submit to random drug screens and to be responsible

for the costs of thos e drug screens.

7. Respondent had received random drug screens during the

term of the RTW Agreement in November 2009 and January 2010, and

had tested negative for cocaine on both occasion s .

8 . On May 17, 2010, Respondent was directed by Kevin

Windham, Petitioner ' s Director of Risk Management, to submit to

a random drug screen. Mr. Windham had attempted to send, via

facsimile, to the drug testing facility, ProHealth, a request

for a nine - panel urine drug screen.

9 . ProHealth di d not receive the facs imile request for the

nine - panel urine drug screen by the time Respondent had reported

for a drug screen. Without instructions from the employer , the

drug testing facility administered what it described as a

" personal " request for drug screen based on inf ormation provided

by Respondent that he thought he was to be tested for cocaine

and marijuana .

10. Respondent had never previously seen the paperwork

from the School Board when he presented himself for a drug

screening. He knew nothing of the number of panels to be tested

or anything other than he was at least to be tested for the

presence of cocaine.

11 . This two - panel urine drug screen produce d a negative

result for cocaine and marijuana .

1 2 . When Mr. Windham learned the School Board requested

drug s creen had not been received by ProHealth and that

Respondent had not been tested with a nine - panel urine drug

screen, he contacted Respondent by telephone and told him to

return to the drug testing facility to complete the full test.

1 3 . Mr. Windham spoke with Respondent between 3:15 and

3:20 in the afternoon advising Respondent he must return to the

drug testing facility for the requested test before 5:00 p.m.

Although instructed to return, Respondent did not do so because

he was nearing his home in Moli no, about 25 miles north of

Pensacola where the drug testing facility was located . He

assumed he could return first thing in the morning for the test

since the two - panel test actually completed was negative for

cocaine and marijuana.

14. Respondent did n ot fail to return the afternoon of

May 17 because he had anything to hide since he had tested

negatively for cocaine in the two - panel test. He just felt like

getting home for the evening after a full day at work.

15. When Mr. Windham learned that Respond ent did not go

back for the desired nine - panel urine test, he took steps to

have Petitioner subjected to a five - panel hair sample testing

the next morning to include testing for extended opiates .

16. By Medical Review Officer (MRO) report of May 26,

2010, Kevin Windham was advised the hair samples had tested

positive for cocaine. Petitioner ' s belief was that the hair

sample test was designed to cover a period of one to three

months for drug detection, therefore indicating that Respondent

had ingested coca ine after entering in to the R TW Agreement on

August 17, 2009, nine and one - half months earlier.

17. When told of the positive result for cocaine,

Respondent stated that he had not used cocaine after August 17,

2009, the date he entered into the RTW Agreem ent.

18. Respondent admits that he was introduced to cocaine in

the late 1970 ' s. He utilized cocaine over the years " once a

year or so . " Respondent denied using cocaine after signing the

R TW Agreement on August 17, 2009. He testified he last used

coc aine in Miami in late July of 2009. H e also acknowledged

that he was aware that if he used cocaine while subject to the

RTW Agreement, he would be terminated.

19. Hair sample tests are capable of detecting cocaine

usage that occurred from several months up to years earlier,

depending upon the lab procedure used, the length of the hair

sample, and related hair growth factors.

20. The hair sample that was taken from Respondent was

retrieved on the morning of May 18, 20 10 , by Carley McCorvey, a

medical ass istant with the drug testing facility, ProHealth.

21. Ms. McCorvey had been trained to retrieve hair samples

from three different sections of the back of a subject ' s head.

The samples were to be retrieved from the back of the head at a

level between the e ars. One section is the middle, and the

other two are on the left and right sides of the back of the

head at the ear level. The sample from Respondent was supposed

to be retrieved by Ms. McCorvey by cutting the hair as close to

the scalp as possible.

2 2. Ms. McCorvey believed the hair samples she cut were

about an inch in length. Respondent believed the samples she

took were longer, from an inch - and - a - quarter to an inch - and - a -

half .

2 3 . Regardless of the length, the sample was placed in a

foil pouch an d sent to an offsite laboratory for testing.

2 4 . The length of the sample hair taken is important,

however, for determining how long before the sample was taken

that the subject, in this case Respondent, had ingested cocaine.

2 5 . At the time of the May 1 8, 2010 , hair sample test

performed on Respondent , ProHealth Medical Assistant Carly

McCorvey had only worked in that capacity for approximately four

months, and she had only previously taken hair samples as many

as five times. Ms. McCorvey was both inexp erienced and

inattentive to the proper protocol in dealing with Mr. Kite that

day, as evidenced by her failure to note the correct date on the

hair sample chain of custody form. She also subsequently failed

her test to become a c ertified m edical a ssistant . Ms. McCorvey

did not know Respondent at the time she conducted the hair test

on him , and she did not learn of this litigation until the day

before her deposition, so there is no reason to believe she had

any specific recollection of exactly how she cut Respondent ' s

hair when asked about it months later.

2 6 . Respondent clearly recalls that the hair sample taken

by Ms. McCorvey was not clipped close to his scalp , but was a

cut made closer to the end of the hair . Although he could not

see Ms. McCorvey a ctually snipping the hair from his head, he

testified that he did not feel the cold of the scissors on his

head and that she took the sample from the thickest part of his

hair which would have been two to three inches long. He

believes she clipped the hai r on the outside of the clip, rather

than underneath the clip.

2 7 . Respondent ' s hair wa s maintained at a length of more

than two inches in the area of his head from which the May 18,

2010 , hair samples were taken. Due to the nature of his male

pattern ba ldness and slow rate of hair growth, his barber ,

Mr. Coulson " Cole " Barfield , cuts very little of his hair in

that area to allow the longer hair (over two - and - a - half inches)

to cover and flow evenly into the shorter, closer cropped hair

farther down the ba ck of Respondent ' s head. Respondent ' s hair

growth patterns closely resemble those of individuals who had

the slowest rate of hair growth in multiple, scientific studies

performed concerning this subject.

2 8 . According to his barber, Respondent ' s hair gro ws

slowly enough that he gets it cut only every three to four

months. Respondent ' s hair was close to its longest state on

May 18, 2010, as he needed a hair cut within a week or two after

the hair samples were taken. He did not get his hair cut again

unti l late September 2010.

29 . Both Petitioner and Respondent relied upon expert

testimony to support their respective positions concerning

whether the hair sample collected by Ms. McCorvey at ProHealth

proved Respondent had ingested cocaine while under the R TW

Agreement.

3 0 . Dr. Charles H. Moorefield , the m edical r eview officer

(MRO) , testified on behalf of Petitioner with regard to the hair

sample and laboratory results from the drug screen of May 18,

2009. Dr. Moorefield is a physician licensed to practic e

medicine in the S tate of Florida with b oard certification in

family practice. He is a diplomat with the National Board of

Medical Examiners, a certified M RO , and a certified Workers '

Compensation Provider. Dr. Moorefield was certified as a M RO on

Febru ary 7, 1993. Since that time he has served as a M RO with

respect to drug screens on a daily basis.

3 1 . As a M RO, Dr. Moorefield reviews positive drug screens

with the donor to determine if there is a medically acceptable

reason for the positive result. In this case he reviewed

Respondent ' s positive result for cocaine from the hair sample

retrieved May 18, 20 10 .

3 2 . Dr. Moorefield contacted Respondent by telephone to

determine if he could provide any information that would

otherwise explain a positive re sult for cocaine. He also

offered Respondent the opportunity to have the specimen sent to

another lab for drug testing.

3 3 . Respondent offered no explanation that would otherwise

explain the positive result for cocaine on the hair sample that

was retriev ed on May 18, 20 10 . He stated that he had not used

cocaine since July 2009.

3 4 . With regard to drug tests using hair samples,

Dr. Moorefield testified that the appropriate procedure is to

sample the hair from as close to the scalp as possible, and

place the hair sample in a foil pouch with the sample oriented

in a way so that the laboratory could identify the end from the

sample cut closest to the scalp. Samples retrieved in this

manner can determine whether cocaine has been ingested by the

person giving the sample for a period of approximately 90 days.

3 5 . Dr. Moorefield never met Respondent , never obtained

any information about his pattern or rate of hair growth, and

did not take or analyze the hair sample in question. Therefore,

everything about Dr. Moorefield ' s opinion as to how recent ly

Respondent ingested cocaine is completely dependent upon matters

outside of his observation or personal review .

3 6 . Dr. Moorefield has little or no experience or training

in areas related to toxicological analysis o r hair sample

testing issues, and he engaged in no research about hair growth

studies for purposes of his testimony.

3 7 . William P. Sawyer, a Ph.D. toxicologist, testified on

behalf of Respondent. Dr. Sawyer is the " chief toxicologist "

with Toxicology Co nsultants and Assessment Specialists, LLC, of

Sanibel, Florida. Dr. Sawyer received photographs of Mr. Kite ' s

hair growth patterns and reviewed and relied upon several

respected hair growth rate studies in formulating his opinion

that this hair test likel y detected only cocaine residue in

Mr. Kite ' s hair from his July - August 2009 , cocaine use.

3 8 . Dr. Sawyer criticized the testing of the entire hair

sample for cocaine rather than " sectioning " it into segments to

be tested individually to determine whether and, if so, when

cocaine may have been ingested by the subject. Assuming the

hair tested was of sufficient length to look back at nine months

of cocaine ingestion, and by testing the entire length of the

hair sample, the tester could not determine when c ocaine had

been ingested, only the fact that it had been ingested at some

time during the period of hair growth.

39 . According to Dr. Sawyer ' s report of August 31, 2010,

the growth rate for human hair ranges from .24 to .59 inches per

month. Based upon the slower growth rate, a hair length sample

from Respondent of 2.16 inches would include hair produced nine

months earlier.

4 0 . By the time of his deposition testimony, which was

introduced into evidence at hearing, however, Dr. Sawyer

identified an even slower growth rate from a study done by

Valent e that would allow a nine - and - a - half month growth of hair

to be as little as 1.87 inches. In rendering his opinion that

the hair sample testing positive for cocaine from Respondent

could result from cocaine i ngestion nine - and - a - half months

previous to the sample being taken, Dr. Sawyer assumed , for

purposes of his opinion, that the hair sample would be as long

as two inches.

4 1 . Dr. Sawyer explained in his report how using a growth

rate of .24 inches per mont h, the longest period of time the

sample could test positive for cocaine prior to the sample being

retrieved would be exactly nine months. This is the result of

multiplying .24 inches per month times nine months for a total

of 2.16 inches as reflected in his report. Dr. Sawyer admitted

that, if the sample were only an inch - and - a - half , using a growth

rate of .24 inches per month the sample would only be good for

6.3 months prior to the sample being retrieved.

4 2 . Under Dr. Sawyer ' s analysis, using even t he slowest

growth rate for human hair identified in any study, the Valente

study, a hair sample that does not reach or exceed an inch - and -

a - half cannot reach a period of more than nine months earlier

than when the sample was retrieved on May 18, 20 10 .

4 3 . Based upon the testimony of Respondent and his barber,

Respondent ' s hair growth rate falls at the lower end of the

spectrum. Using the slowest growth rate offered by any witness

at the hearing, the sample would have to be nearly two inches in

length to s upport the ingestion of cocaine at least nine months

prior to the May 18, 20 10 , hair retrieval date.

4 4 . The hair sample retrieved on May 18, 2010, was an

inch - and - a - quarter to an inch - and - a - half in length. If that

hair sample had been clipped close to his scalp, and if the

length of that sample had not exceeded an inch - and - a - half , then

Petitioner would have established that Respondent ingested

cocaine while he was under the RTW Agreement.

4 5 . Respondent ' s hair was greater than an inch - and - a - half

in le ngth based upon his testimony, his barber ' s testimony, and

the phot ographs entered into evidence .

CONCLUSIONS OF LAW

4 6 . The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. § § 120. 569, and 120. 57(1), Fla. Stat.

4 7 . In this proceeding , Petitioner seeks to terminate the

Respondent ' s employment. Petitioner bears the burden of proof,

and the standard of proof is by a preponderance of the evidence.

McNeill v . P inellas County Sch . Bd . , 67 8 So. 2d 476, 477 (Fla.

2 d DCA 1996) ( citing Dileo v . Sch . Bd . of Dade County , 569 So. 2d

883 (Fla. 3 d DCA 1990) ) .

4 8 . Respondent ' s July - August 2009 , cocaine use is not at

issue, and the parties agree that he can lawfully be terminated

under the RTW Agree ment if he is found to have ingested cocaine

after entering into the RTW Agreement . Therefore, the outcome

of this matter rests only upon the question of whether the

School Board has provided sufficient evidence to overcome

Respondent ' s unequivocal denial of any subsequent use of

cocaine ; the negative urine test results from November 2009,

January 2010, and May 17, 2010 ; the testimony of Cole Barfield

about Respondent ' s hair growth and haircut patterns ; and the

expert toxicological testimony of Dr. Sawyer that plausibly

explains how the May 18, 2010 , hair sample test could be

positive even if Respondent did not ingest cocaine after

August 2009.

49 . The School Board presented no testimony from anyone

who can corroborate Respondent ' s alleged use of cocaine a fter

August 2009, and there is nothing in this record about

Respondent ' s job performance or behavior after his December

return to the classroom that expresses or confirm s concerns that

he has continued to use illegal drugs. Further, Respondent

subjected h imself to a urine test, as ordered, on the afternoon

of May 17, 2010, and the negative result of that test

definitively shows that he had not used cocaine during the

recent time period the random urine test was intended to take

into account in the first pl ace. It is undisputed that

Mr. Kite ' s urine would have been tested correctly (the nine -

panel screen) but for Petitioner ' s failure to timely inform the

ProHealth staff by fax of the precise testing it wanted

performed. It is also undisputed that Responden t ' s May 17,

2010, urine sample would have tested negative for cocaine use,

irrespective of how many other substances were checked for in

addition to cocaine, had the drug testing facility timely

received the proper paperwork. In effect, Respondent was

pun ished for not returning nearly 25 miles to the drug testing

facility on May 17, 2010, late in the afternoon after a full

day ' s work, knowing he had already received a negative result on

the screen for cocaine, the banned substance that led to his

entering into the RTW Agreement in the first place.

5 0 . To compound matters, when Respondent returned to the

drug testing facility , rather than undergoing a urine screening,

he was informed he would have to give a hair sample to be

tested . The sample was taken by an inexperienced medical

assistant who had collected only about five hair samples

previously for testing. The assistant incorrectly marked the

date on the sample as May 17 rather than May 18. Also,

according to the testimony of Respondent, she may have snipped

the sample outside the hair clip attached to Respondent ' s head

rather than below the clip against his scalp. He did not feel

the cold scissors against his scalp when the sample was taken.

From the testimony and evidence at hearing, hair of a suff icient

length was present o n Respondent ' s head to allow a sample of at

least two to three inches to be taken if the cut was properly

made in the thickest part of his hair between his ears .

5 1 . Ms. McCorvey, the medical assistant who retrieved the

hair sam ple from Respondent, had not thought about the actual

collection of the hair sample from at least May 18 until she

learned that her deposition would be taken, in October. During

that time she performed countless drug screenings and could not

reasonably be expected to remember any particular one in any

great detail. Respondent, on the other hand, had his life

changed significantly by the May 18 drug screening and,

understandably, recalls every detail.

5 2 . Neither expert witness who testified via deposit ion

about the hair sampling process and appearance of banned

substances in the sample actually reviewed the sample taken from

Respondent on May 18, 2010. Everything they relied upon in

their analys e s of the sample was based upon reports,

photographs, and information supplied by counsel for the

respective parties. While both are highly qualified in their

fields, the most helpful testimony they offered was that hair

grows at a variety of rates, from less than .24 inches per month

to over half an inch per mo nth. The familiarity and great

detail of Respondent ' s barber, Cole Barfield, with his hair and

the slowness of its growth, however, as well as Respondent ' s

recollection of the hair sampling procedure, is impossible to

ignore. The length of hair was prese nt on the relevant area of

Respondent ' s head to allow a sample to be taken of at least two

inches.

5 3 . The testimony of both Dr. Sawyer and Dr. Moorefield is

credible concerning hair growth rates. When their testimony is

combined with Mr. Barfield ' s, no question exists as to the fact

that Respondent ' s hair growth rate is slow. The concern over

whether the medical assistant clipped the entire length of

Respondent ' s hair from the scalp outward is real. It is not

reasonable to conclude that she could only have clipped an

inch - and - a - quarter to an inch - and - a - half of hair when the length

greatly exceeded two inches on the rear of Respondent ' s head if

she had actually retrieved the sample in the manner she was

trained to do so . This is further supported by Re spondent ' s

testimony that he clearly recalls not feeling the scissors near

his scal p at the time of the retrieval.

5 4 . The preponderance of the evidence in this matter

establishes that Respondent ' s hair in the areas sampled was

approximately two - and - a - qua rter to two - and - a - half inches long on

May 18, 2010 ; that Ms. McCorvey clipped his hair with the one

half inch clip secured near the roots ; and that she cut samples

of approximately an inch - and - a - quarter to an inch - and - a - half

that stretched from the side of the clip closest to the end of

Mr. Kite ' s hair to the end of his hair in each location.

5 5 . For all of the reasons noted above, Petitioner has

failed to prove by a preponderance of the evidence that

Respondent ingested cocaine at any time after August 2009, and

therefore has not proved that it ha d just cause to terminate his

employment. As a consequence, Respondent should be reinstated

to his former position and reimbursed his back pay and any back

benefits to which he would have been entitled had his employment

not been terminated by the School Board.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law,

it is

RECOMMENDED that the Escambia County School Board enter a

final order reinstating William Dale Kite to his former

position, award ing him back pay, and awarding him those benefits

to which he would have been entitled as an employee had he not

been terminated .

DONE AND ENTERED this 17th day of December, 2010, in

Tallahassee, Leon County, Florida.

S

ROBERT S. COHEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Div ision of Administrative Hearings

this 17th day of December , 2010 .

COPIES FURNISHED :

Anthony D. Demma, Esquire

Meyer , Brooks , Demma and Blohm , P.A.

Post Office Box 1547

Tallahassee, Florida 32302

Joseph L. Hammons, Esquire

The Hammons L aw Firm , P.A.

17 West Cervantes Street

Pensacola, Florida 32501 - 3125

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Dr. Eric J. Smith, Commissioner of Education

Departm ent of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Malcolm Thomas, Superintendent

Escambia County School Board

75 North Pace Boulevard

Pensacola, Florida 32505

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.